The American Banker leaked part of a draft of the regulators’ proposed Volcker Rule (pdf) last week, which has caused quite a stir. The first thing to note is that the American Banker did not leak the most important part: the text of the proposed rule. Instead, they leaked the “Supplementary Information” (which I call just the “Supplement”), the core of which is a lengthy, section-by-section analysis of the proposed rule. In addition, the leaked portion does not include the Appendices to the proposed rule, which, from reading the Supplement, appear to be very important — Appendix B, for example, contains a “detailed commentary regarding how the Agencies propose to identify permitted market making-related activities,” which is a core issue.

First I’ll give some general thoughts on the proposed Volcker Rule, and then, because I’m such a generous guy, I’ll go ahead and highlight some of the most important pressure points in the proposed rule.

General Thoughts on the Proposed Volcker Rule

In general, the proposed Volcker Rule appears to be very good: it’s a serious effort by a group of smart, market-savvy people to draw a workable distinction between market-making and proprietary trading. The regulators recognize the importance of both market-making and hedging, but they also recognize (most of) the places where market-making and hedging can bleed into proprietary trading. And in those situations, the regulators realize that any effort to distinguish impermissible prop trading from permissible market-making or hedging will — quite appropriately — require a very fact-intensive inquiry. That said, I’m still going to have to withhold my final judgment until I see the actual text of the proposed rule.

Also, even though the WSJkeeps trying togin up controversy over the proposed Volcker Rule allowing hedging on a portfolio basis, the regulators note in the Supplement that allowing hedging on a portfolio basis is “consistent with the statutory reference to mitigating risks of individual or aggregated positions” (emphasis in original). I explained this a couple of weeks ago; it is a faux-controversy. Moreover, prohibiting banks from hedging on a portfolio basis is a monumentally stupid idea in the first place — it would make risk managers’ jobs 100 times harder, introduce all sorts of new risks into banks’ books (counterparty risk would skyrocket), and dramatically raise hedging costs. This is one thing that the statutory text of the Volcker Rule actually got right.

Some Pressure Points in the Proposed Volcker Rule

Now, to the nitty-gritty of the proposed rule. Here some of the major pressure points in the proposed Volcker Rule that I see:

1. Hedges must be “reasonably correlated” to the underlying risk: In defining “risk-mitigating hedging activity,” the rule requires that the hedge be “reasonably correlated” to the underlying risk(s). The Supplement implies that the correlation must be reasonable at the outset of the hedging transaction, which is absolutely appropriate — a lot of times, you think a trade will be a good hedge when you put the trade on, but because of circumstances beyond your control, it turns out not to be a very good hedge (e.g., liquidity may unexpectedly dry up in either the underlying or the hedge, screwing up the normal correlation).

The real question here is: in normal market conditions, when does the correlation between the hedge and the underlying become “unreasonable”? In other words, how much leeway will banks have in determining how to hedge their books? Say a bank enters into a swap that only hedges 50% of the DV01 of the underlying bond. Would that be considered “reasonably correlated” to the underlying risk? (Obviously, I’m simplifying my examples for illustrative purposes.) After reading the Supplement, I strongly suspect that I know what the regulators’ answer would be: it depends on the particular facts and circumstances. If, for example, the swap was coupled with another transaction that hedged the remainder of the DV01 of the underlying bond, then both transactions would be permitted, because when viewed together, they were both part of a legitimate hedging strategy.

The Supplement also hints at what regulators would NOT consider to be “reasonably correlated” — it states that “[a] transaction that is only tangentially related to the risks that it purportedly mitigates would appear to be indicative of prohibited proprietary trading” (emphasis mine). I think it would be a stretch to say that regulators intend to consider any transaction that’s more than “tangentially related” to be a “reasonably correlated” hedge. But this at least indicates that regulators won’t simply accept a hand-waving, “trust me, they’re related” response to inquiries about the appropriateness of a hedge.

In the end, what we know is that a permissible hedge must be less than “fully correlated” but more than “tangentially related” to the underlying risk, and that if the appropriateness of a hedge is questioned, it will be a very fact-intensive inquiry. Which, by the way, is the way it should be.

“[T]he proposal also recognizes that any hedging transaction will inevitably give rise to certain types of new risk, such as counterparty credit risk or basis risk reflecting the differences between the hedge position and the related position; the proposed criterion only prohibits the introduction of additional significant exposures through the hedging transaction.”

There are actually three potential flashpoints in this prong. The first flashpoint is what constitutes “additional significant exposures.” How significant does the new risk that the hedging transaction is introducing have to be before regulators will require it to be hedged as well?

The second flashpoint is what constitutes mere “basis risk,” and what constitutes an impermissible residual risk. The Supplement says that a hedge that merely introduces counterparty or basis risk is permissible. Here’s what I would tell our trading desks if I were still working at an investment bank: start calling every residual risk a “basis risk.” Basis risk evidently doesn’t need to be hedged under the proposed Volcker Rule, regardless of how significant the exposure is. So if you want to profit from the price movement in a certain risk, then just partially hedge the risk with another transaction and call the residual risk “basis risk.”

The third flashpoint has to do with when the “additional significant exposure” must be hedged. The Supplement states that if a hedge introduces a significant new exposure, then the exposure must be hedged “in a contemporaneous transaction.” Assuming that regulators will allow banks some time to hedge the new exposure, the question becomes how much time will they have to hedge the new exposure? An hour? A day? A week? I strongly suspect that the regulators’ answer will be that banks will have to hedge the new exposure “as fast as humanly possible” (not in those words, obviously — the legislative language will probably be something like “as quickly as technologically practicable.”)

3. “Bona fide liquidity management”: This is where I would go first if I was trying to circumvent the Volcker Rule. The statutory text of the Volcker Rule defines proprietary trading in a very roundabout way, such that the real definition of proprietary trading is in the definition of a “trading account.” However, the proposed rule provides an exclusion from the definition of a “trading account” for accounts that are use “to acquire or take a position for the purpose of bona fide liquidity management, so long as [five] important criteria are met.”

The reason I would go here first if I was trying to circumvent the Volcker Rule is that if a trade could fit under the “bona fide liquidity management” exclusion, there would be no need to bother with any of the more complicated “permitted activities” exceptions, and evidently, no need to report nearly as much, if any, quantitative trading data to regulators.

The proposed rule requires that trades done under the liquidity management exclusion be done according to a “documented liquidity management plan” that meets five criteria. But none of the five criteria in the proposed rule appear to me to be prohibitive if a bank wanted to use the liquidity management exclusion for prop trades. The plan has to “specifically contemplate and authorize any particular instrument used for liquidity management purposes” — fine, just write a liquidity management plan that contemplates the use of a (very) wide range of instruments (a lot of instruments have reasonably liquid markets in normal times). The second criterion basically requires that an instrument used for liquidity management not be used “principally” for prop trading purposes, which is easy, since prop trading is prohibited regardless of whether it’s the “principal” purpose of the instrument.

The third criterion requires the liquidity management plan to be “limited to financial instruments the market, credit and other risks of which are not expected to give rise to appreciable profits or losses as a result of short-term price movements.” This criterion simply can’t be enforced terribly stringently — even Treasuries, which are the core of any serious liquidity pool, often experience significant short-term price movements. Fourth, the plan would have to limit liquidity management positions to “an amount that is consistent with the banking entity’s near-term funding needs.” This also can’t be seriously enforced, because it would directly conflict with Basel III’s new Liquidity Coverage Ratio (LCR), and cautious liquidity management in general. Finally, the plan would have to be “consistent with the relevant Agency’s supervisory requirements ... regarding liquidity management.” Seeing as the new liquidity rules set a floor on a bank’s liquidity management, and not a ceiling, using instruments that don’t qualify for the LCR in a broader liquidity management plan would certainly still be “consistent with” the regulators’ liquidity requirements.

4. “Near term” / “Short term”: The statutory text of the Volcker Rule effectively defines a proprietary trade as any trade done “principally for the purpose of selling in the near term.” While the Supplement doesn’t provide much detail on what constitutes “near term,” it does hint at an answer: 60 days or less. The proposed rule will apparently include a rebuttable presumption that any account used to take a position that is held for less than 60 days will be considered a “trading account.” Therefore, it stands to reason that accounts which are used (exclusively) to take positions that are held for longer than 60 days will not normally be considered “trading accounts,” and thus not subject to the Volcker Rule. But, of course, I strongly suspect that the regulators will say that this determination is ultimately going to be based on the particular facts and circumstances of the trade.

Anyway, there are a few more pressure points like this in the Supplement, but that’s all I have time for right now.

249
comments:

larry
said...

Banks shouldn't be engaging in any of this bullshit activity other than so-called investment banks.

Cost of compliance is a huge issue that is being swept under the rug. Many market making operations operate in a completely legitimate manner, offering benefits to the banks' customers and doing so in a responsible manner. These operations typically run on razor-thin margins. Faced with the requirement to radically increase oversight cost, many banks will simply shut these operations down. This will lead to less liquidity, thinner markets, and higher transaction costs to the end user. For instance, many retail option traders benefit more from "price improvement" on their fills than they pay in trade commissions. That could go away under the Volcker rule. There should be "safe harbor" clauses that will let these well-run operations that pose little risk have more certainty about their regulatory exposure.

care to offer any intelligent thought to this discussion? or just angry ignorant comments.

What shouldn't be allowed? Market making? Hedging? Prop trading? Why?

the dissenters and haters of wall street will never EVER be taken seriously until they / you make some form of reasonable argument. This is the basis of the problem of occupy wall street... many if not all protestors have admitted they have ZERO clue how finance works.

agreed that we are in a broken system but fighting with ignorance and anger without realizing the consequences and impact of change is playing with fire. a well thought out vetted solution should be discussed instead of this bullshit shouldn't exist

This rule tries to remove the incentive to take prop risks from client-facing desks, which is fine. But please do not prevent banks from setting up separate prop businesses. It is up to the banks to show lawmakers they are capable of segregating these activities and the benefits it brings. Goldmans did a huge disservice to the industry by showing everyone how reluctant they were to do that.

Exactly why the banks cannot simply sell the business units that get to difficult to administer for V Rule compliance escapes me. See as precedent, the break ups of the CPA firms (spinning off consulting units), break up of Standard Oil.

Just have the bankers in the spun-off units take some loans, buy their units (via LBOs), and have the spun-off units survive on their own.

If the V Rule impinged/shadowed units cannot survive on their own, because they need the implicit bail-out guarantee that comes from being in a TBTF bank, the bankers affected need to find other lines of work, eh?

Please write more on Volcker Rule criteria: What should the bright lines be? What should the percentage of fees paid v. fees earned? Percentage of customer-facing trades? Should OTC be prohibited, since there are no genuine customer counterparties (other than the bank)?

I do support reinstating Glass-Steagall AND making proprietary trading by banks off limits. If they don't like it, they can become an investment bank or finance company. We need to separate these functions. The regulations as proposed are too dense and vague. It would unreasonable for any regulator to have the time and resources to actually police the Volker rule if you permit proprietary trading that is also market making. Market making is just a gigantic loophole. If you allow it, you can't stop proprietary trading that puts bank clients at unfair risk.

Dear Anonymous: You asked -Why shouldn't banks be market makers (in response to my call for the reinstatement of Glass Steagall). My answer: We need financial stability. Glass-Steagall strengthens retail and commercial banks and a strong Volker rule would strengthen investment banks. Investment banks are properly positioned and structured to be market makers. That is their function. To provide a counterbalance in the broad economy, we need retail banks that are averse to risky schemes. Glass-Steagall helps control the conflict of interest with an institution that lends money and its impulse to bet against the money it lends. We need institutions that limit risk as a balance to institutions that make money off of creating risk (the market makers). There is room for both and we need both - but both functions cannot be well-contained in a single institution. There's an unmanageable conflict of interest (remember Bank of America's unfortunate acquisition of Merrill Lynch - that's what happens why you buy an investment bank - you take the good with the bad, the enormous gains with the even more spectacular losses). In short, that's why I support Glass Steagall. Both kinds of banks need to be transparent - a word that scares many in finance. To undermine transparency, they bury the risks they take in mountains of obscure details designed to hide the size of the risk they take. That's why I support bright lines in the Volker rule instead of permitting the ambiguity that creates loopholes (or could lead to the law being unconstitutionally vague). I hope you will support Glass-Steagall's reinstatement. Retail banks directly serve consumers that are not seeking outsize risks. They are FDIC insured - which means their bad bets will be covered by taxpayer money. That taxpayer money will no longer be available to cover schools, Medicare, highways etc. It was a diversion of the country's wealth into the pockets of the 1 percent. Investment banks have become addicted to risk to boost profits without accepting responsibility for the losses. (I'm reading Zuckerman's The Greatest Trade Ever, which may embody our need for bright lines in the Volker rule). We cannot continue to allow investment banks to socialize losses and privatize gains. It's completely unacceptable. By all rights, some investment banks around today should have been dissolved after they went insolvent. It's unfortunate that did not happen. Instead, the US government chose to use taxpayer money to save them - and the executives at these major investment banks militantly resist reform. Wall Street executives also had the audacity to award themselves record levels of bonuses in 2010. For what? For having others dig them out of a hole. These taxpayer bailouts diverted the country's wealth from places where it was needed: infrastructure repair and schools - to the 1 percent. Had more investment banks gone under (not just LB and BS), without the taxpayer bailout money, these "market makers" would not have been getting those bonuses and our economy would be much stronger. While Wall Streets sins were forgiven, they have refused to grant meaningful mortgage modifications to millions of homeowners whose homes are underwater. As a result, in 2010 (year of the record bonuses on Wall Street) 2.9 million homes had foreclosures filed against them (source: RealtyTrac). Wall Street's interests are in direct opposition to the interests of Main Street. Wall Street (the finance sector) wants stratospheric yields and does this by socializing losses and privatizing gains. Main Street (everybody else) needs long-term stability. Extremely high gains tend to be illusory - they reflect the shell game in which one is playing interest rates against each other. True growth comes from the concrete value added by the actual production of services and goods (manufacturing, health care, etc). True growth comes from Main Street's businesses and people, not from the finance sector's shell games with interest rates.

Within in your random walk ranting you have some valid points... couple of questions though.

You realize the market making function and banking functions are usually in completely separate entities. One will be in the registered broker dealer and the other will be in their national, regional etc chartered bank. Customer deposits are not used for market making activity. (granted with hedging it gets a bit dicey, but in general market making is in the broker dealer).

Now onto the bailouts which popped up in a semi-unrelated part of the rant.... All of the banks paid back their bailouts with a hefty return to the tax payer (with C & AIG well on their way). The one finance related company that did NOT and NEVER will is Freddie Mac. Currently at $153 BILLION and counting... they received more money than WFC, JPM, MS, GS, COMBINED! I believe this company was set up to serve the tax payer and now the tax payers are paying for it. Their impact to this mortgage mess is not covered nearly enough.

Lastly risk taking and market making are two different animals all together. I get that you want to limit risk taking, that makes sense. Curbing market making is a tricky and dangerous slope that no one should consider messing with.

As far as the rest of your comments I can't really tell one thing from another after the 17th run on sentence within the same paragraph. If there was anything I missed let me know and I will happily discuss.

Anonymous 1) Disagreement is not equivalent to a rant. 2) You point out that market-making functions and proprietary trading are usually in separate entities. 3) I would like to add that these separate entities can be owned by the same holding company. 4) If losses at the proprietary trader or market making entity upset the holding company's balance sheet, forcing it into insolvency, what happens to the assets of subsidiaries that hold deposits for customers. 5) We just saw this happen in 2008 - Don't you remember? Lehman Brothers- healthy subsidiaries lost because of subsidiaries holding toxic assets. We didn't lose AIG - a 'safe' company with a triple A rating although it held Financial Products. Why didn't we lose AIG? The taxpayer bailout. 7) The official reports do say that taxpayers were repaid the bailout money, but the country cannot keep bailing out increasingly large financial institutions without destabilizing itself.

I understand that disagreement is not = a rant... But the difference between an argument and a rant is coherence. One run on paragraph is not coherent.

Yes they certainly can and are owned by the same company, and yes if one fails they both go down. The point is that because they are separate entities customer funds are not used for market making. Absolutely can not happen across entities.

Arguing against prop trading and market making is completely different. Prop trading should NOT be allowed (at B/d or Bank) and market making is not allowed on the bank. So I am not quite sure what your argument is.

Lehman was not a traditional bank, no one had a checking or savings account there so I am not sure how it is a relevant example.

AIG was a whole different monster, prior to 2008 NO ONE would have thought of them as financial. Clearly new regulation needs to be put into place to ensure that they are being regulated as a Financial Company.

Not sure if I hit all seven points, but you didn't have a number 6) and 2) & 3) should have been combined

Anonymous - it's a pleasure to argue with someone who is very good at it. My apologies for writing in long paragraphs.

You pointed out that if a single holding company owns an entity that holds customer deposits (a commercial bank) and a separate entity that is a registered broker-dealer (an investment bank) - "if one fails they both go down."

That's the problem. That's why I support Glass-Steagall. I would like investment banks to have the freedom to take risks with money - but I want commercial banks completely insulated from those risks. Integrated companies can make more money, but they are inherently more risky and therefore destabilizing to the economy at large. Allowing the same holding company to own investment banking and commercial banking units sets up the potential for the investment banking units failure to take down the "safe" subsidiaries. It has the additional affect of letting holding companies grow to a point where they are large enough to be systemically dangerous. When these massive financial conglomerates fail, the taxpayers feel pressure to bail them out - and we lose money that is desperately needed for national infrastructure, research and development, education etc.

We cannot continue to privatize gains and socialize losses. Glass-Steagall helped prevent the socialization of losses while permitting investors to enjoy their private gains.

Banks did not fail because of their market making activities, it was their risky bets that they should not be taking.

To say that this crisis escalated to this point and the ballouts were required because Banks and Broker-Dealers were combined is an impossible fact to prove.

Never before was there this much leverage in the system (at the personal, corporate, city, state etc), never before was wall street so connected with main street in the amount of mortgages out there. There are so many drivers of the crisis it is impossible to pin point.

As far as:"We cannot continue to privatize gains and socialize losses. Glass-Steagall helped prevent the socialization of losses while permitting investors to enjoy their private gains."

Every American benefited from the gains over the last two decades... from the appreciation in their homes, easy credit that allowed them to purchase anything they wanted (tvs, iPods, cars, etc etc), this was not just limited to their investors.

Going back to Freddie, a company set up to serve the public is still looking at $153bn dollars. This was directly done to benefit the american public, especially those who failed to purchase homes with 20% down, make payments etc. This is another socialization of losses..

First time home buyers, cash for clunkers, etc are all programs to socialize the losses. As someone who was unable to take part in any of those and doesn't own a home, my tax money went to those programs on something I didn't create.

Social security is probably going to be bankrupt long before I use it. I only get junk mail (everything is digital) yet the post office just announced a projected $14.1BN loss this year.

There is a whole host of programs that are created to help the general good of this country despite it not helping everyone and thats unfortunately the way it is.

Now that being said, should there be laws to reduce this yes... but simply saying Glass-Steagall or lack there-of caused the crisis is short-sighted and a knee jerk reaction. Again, wasn't normal broker-dealer activity that took down banks, it outsized bets they should not have taken. Things like B/D owning hedge funds (ahem Bear) were certainly wrong... BHCs having a banking arm and a B/D does not increase the risk in the system.

I am all for eliminated Prop trading... I think derivative reform is necessary (although the current rules will end up costing more than another bailout would but thats for another day).

Anyways not really sure if I addressed your points or not, but those are my thoughts on the matter

You know, ever since MF Global blew up, the silence from this blog has been DEAFENING. Either you are are very ill and can't do this anymore or you are are hiding because you realize MF Global condemns just about every facet of your "industry"...and the lawyers that support it. So which is it? -rufus

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I'm a finance lawyer in New York. I used to focus on derivatives and structured finance (you know, back when there was a structured finance market). I spent the majority of my career at one of the major investment banks. My background is in economics and, unfortunately, politics.

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